WOMEN’S RIGHT : WORKPLACE DISCRIMINATION

Uncategorised

By Tee Jae Ei

University: Brickfields Asia College

  1. Introduction

Despite the pessimistic views on the country’s current economic recovery momentum, the  Department of Statistics Malaysia (DOM) in its first-quarter of 2021 recorded an increase in the labour participation rate by 0.5 percent, with 38.9 percent of women actively engaged in the labour force. Notwithstanding the improvements of recent years, the World Bank Organization (WBO) in its report pointed out that even though women outperform men in education, female labour participation remains significantly low when compared with other peer countries. It is suggested that the problem of women being an underutilized source of labour is a pressing issue, as it will negatively impact a country’s overall labour market efficiency and economic growth in the long-term.

2.0 What is causing the gender gap in labour force participation in Malaysia?

According to the International Labour Organization (ILO) in 2017, one of the fundamental factors that is driving women’s decision to participate in the labour force is gender role conformity. The social norms that view “men as the main breadwinners and women as the homemakers” are deeply embedded in Malaysia. These gender ideologies had proved to be harmful in achieving gender equality in the world of work. A report which reveals 56 percent of Malaysian women faced one or more forms of gender discrimination in workplace, further proves that Malaysian women are still disadvantaged in terms of equitable access to employment opportunities, earnings, treatments and more.

Aside from the gendered social factors, legal barricades such as the prevalence of legal gender differences in Malaysia’s legislation are also one of the key factors that discourage women from joining the labour force. It is argued that the current labour legislation that perpetuates discriminatory pay structures and division of labour, while at the same time disregarding women’s maternity entitlements, has failed to provide adequate legal protection for female employees in the workplace, especially in the private sector. 

3.0 Employment Act 1955 (Act 265)

In Malaysia, the Employment Act 1955 (the EA) is regarded as the most important employment statute, as it outlines the minimum rights of employers and employees in the private sector. The pregnancy and maternity rights for working women in Malaysia can be found specifically under Part IX of the EA (Section 37 to Section 44). Given the importance of this Act, ministers have been proactive in ensuring the EA is updated and up to date with the current needs of the employment environment.

One of the recent significant amendments attempted by the legislature to address women’s rights in the workplace can be seen through the introduction of the Employment (Amendment) Act 2012 (“the EAA”). Prior to the amendments on 1st April 2012, entitlement to maternity leave provided under the EA was only limited to female employees whose monthly salary did not exceed RM1,500. By virtue of the new Section 44A of the EAA, every female employee who is employed under a contract of service irrespective of her wages will now be entitled to the rights under Part IX of the EA. The EAA also added subsection (4) under Section 37 of the EA to prohibit female employees from being terminated during the eligible maternity leave period. The amendments made in 2012 indicate that the government has paid serious attention to female employees’ rights.  

The question now is “does the current amended EA provide adequate protection for women’s rights within the workplace in the year of 2021?“. The answer is no, as it is clearly outdated, especially when compared with the current standard of employment law adopted by other countries to promote gender equality (such as Singapore and the UK). The current deficiencies in the Employment Act are as follows:

  1. Part IA of the EA imposed restrictions on the employment of women. Examples are seen through Section 34 which prohibits female employees from working at certain hours, while Section 35 restricts women from doing underground work such as mining.
  1. The 60 days of paid maternity leave period provided under Section 37(1)(d)(ii) is a far cry from the recommended minimum of 14 weeks/ 98 days by the ILO’s Maternity Protection Convention 2000 (No. 183).
  1. The absence of protection against the possibility of termination on the grounds of pregnancy and the exclusion of termination on closure of business under Section 37(4) are deemed to be unfair and discriminatory towards pregnant women.
  1. Although the act states that the breach of Section 37(4) and Section 42 constitute an offence, there is no specific penalty provided aside from the general remedy under Section 99A. It is argued that the general penalty fine of not exceeding RM 10,000 is an ineffective deterrent against errant employers and compliance mechanism under the EA.
  1. It is recognised that the existence of unequal pay between males and females is attributable to pervasive discrimination against women in the workplace, yet there are still no specific provisions under the EA that mandate “equal remuneration for work of equal value” or any explicit prohibitions on gender-based discrimination during the course of employment. 

4.0 Women’s rights in the workplace protected under the Constitutional Law?

In August 1995, Malaysia ratified the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) and since then, the word “gender” has been added under Article 8(2) of the Federal Constitution as an attempt to eliminate gender-based discrimination in the law.  However, the efficacy of protections against gender discrimination under constitutional law, particularly against pregnant women, has now been questioned.

In Beatrice a/p AT Fernandez v Sistem Penerbangan Malaysia & Ors, despite the Federal Constitution providing the basis for every citizen’s liberties, the High Court ruled that Article 8(2) only binds the government and does not extend to discrimination in private agencies. This decision showed the lack of consideration on the fact that discrimination occurs in both public and private sectors by state and non-state actors.

In Air Asia Bhd v Rafizah Shima bt Mohamed Aris, the Court of Appeal held that the termination of a trainee due to her pregnancy is not a violation of Article 8(2) and CEDAW since an international treaty has no force of law in Malaysia, unless enacted in the domestic law. Thus, the efficiency of the convention is limited, and the absence of a legal framework has rendered the protections given under the constitutional law impotent. 

The absence of clarification on the legal definition of “discrimination” also demonstrates that the law has failed to recognise that discrimination can occur directly or indirectly against women in the workplace.

In short, given that laws reflect the value of a society, Malaysia’s current laws still signal that discrimination and issues that women face arising from pregnancy and maternity in the workplace, particularly in the private sector, are still accepted and expected. 

5.0 Recent attempts in addressing women’s right in workplace

In October 2019, Malaysia’s Budget 2020 announced the proposal to increase maternity leave from 60 days to 90 days and new provisions on the prohibition of discrimination. However, intentions expressed by the executive branch itself are insufficient to make real changes, as such proposals can not be institutionalised through a budget.  For an intention to become reality, proper procedures for enactment of an act provided under Article 66 of the Federal Constitution must be followed.

The other attempt made by the legislature to address the inadequacy of protections under the law can be seen in the proposal released by the Ministry of Human Resources (MOHR). In 2018, the MOHR has proposed several amendments to the EA with the aim to enhance overall protection for employees, complying with the ILO’s standards and strengthening the enforcement mechanisms. The specific amendments made towards enhancing women’s rights within the workplace are as follows:

  1. The new addition of Part IA and Section 17B of the EA with explicit prohibition on discrimination on the grounds of gender, marital status and pregnancy during the pre-employment and employment stage. 
  1. Pregnant employees would be entitled to 98 days of paid maternity leave under Section 37 of the EA.
  1. Inclusion of restrictions on termination of female employees on the grounds of pregnancy under Section 42 of the EA.
  1. The removal of Part VIII of the EA that prohibits female employees from being employed in certain jobs or working at certain hours.

The amendments mentioned above are considered as positive steps towards gender equality under the law, as it can help eliminate issues of workplace discrimination and change the treatment and perception of women in the world of work.

However, it is worth mentioning that there are still some gaps in the proposed amendments above, as existing issues such as unequal pay and the lack of maternity entitlement for women after the fifth child under Section 37(1)(c) of the EA were left unaddressed. Likewise, the inclusion of paternity leave under the EA that could help improve the perception of gender equality and shared care responsibilities was also overlooked by the proposal. 

6.0 Reality check

There are heated debates on the issue “whether the cost of the additional 38 days of maternity leave should be borne solely by employers or by the government”. The Malaysian Employers Federation (“MEF”) has expressed concerns over the possible economic impacts of such amendments. Considering the fact that Malaysia’s economic situation is on the brink of collapse, it is questionable whether micro-enterprises that are struggling to keep business afloat will be able to absorb such additional costs. At the same time, there are also concerns that the proposed amendment might have a backfiring effect by driving employers to stop hiring or promoting women with a fear that they might get pregnant. At the current stage, the proposed amendment to the EA is still awaiting its turn to be tabled in the next few parliament sessions. Hence, details of the proposed amendment remain unresolved.

7.0 Conclusion

The inadequacy of the existing law in affording protections for women against workplace discrimination is one of the material factors which hinders women from joining the labour force. Therefore, the legislature should focus on amending and eliminating legal barricades that are currently against women’s rights in the workplace, while at the same time, staying active in enhancing laws that promote gender equality.

References

  1. World Bank Group, ‘Breaking Barriers: Towards Better Economic Opportunities for Women in Malaysia’ (World Bank, The Malaysia Development Experience Series, 2019) <https://documents1.worldbank.org/curated/en/734461569247873555/pdf/Breaking-Barriers-Toward-Better-Economic-Opportunities-for-Women-in-Malaysia.pdf > accessed 13 August 2021
  2.  International Labour Office, ‘World Employment and Social Outlook: Trends for women 2017’ (ILO, Geneva, 2017)<https://www.ilo.org/wcmsp5/groups/public/—dgreports/—inst/documents/publication/wcms_557245.pdf > accessed 15 August 2021
  3.  Teh Athira Yusof, ‘Gender Discrimination: WAO calls for review of Employment Act’ News Straits Time (Kuala Lumpur, 27 October 2020) < https://www.nst.com.my/news/nation/2020/10/635829/gender-discrimination-wao-calls-review-employment-act > accessed 15 August 2021 
  4. Human Rights Commission of Malaysia, ‘An Independent Report to the Commitment on the Convention on the Elimination of All Forms of Discrimination Against Woman (CEDAW)’ (2017)
  5. Nazruzila Razniza Binti Mohd Nadzri, ‘Malaysian Employment Laws: Tracking the Recent Updates’(2012) 1 SEAJBEL < https://seajbel.com/wp-content/uploads/2014/07/Malaysian-Employment-Laws-Tracking-The-Recent-Updates-Nazruzila-Razniza-Binti-Mohd-Nadzri.pdf > accessed 13 August 2021 
  6. The World Bank Group, ‘Women, Business, and the Law 2021’ (World Bank, Washington DC, 2021)<https://openknowledge.worldbank.org/bitstream/handle/10986/35094/9781464816529.pdf > accessed 18 August 2021
  7. Jashpal Kaur Bhatt, ‘Pregnancy and Maternity Entitlements under the Employment Act 1955 – Are Women Workers in Malaysia being short-changed?’ [2015] 5 MLJ Ixxxiii
  8. Constitution (Amendment) (No.2) Act 2001 
  9. [2005] 3 MLJ 681
  1. World Bank Group, ‘Breaking Barriers: Towards Better Economic Opportunities for Women in Malaysia’ (World Bank, The Malaysia Development Experience Series, 2019) <https://documents1.worldbank.org/curated/en/734461569247873555/pdf/Breaking-Barriers-Toward-Better-Economic-Opportunities-for-Women-in-Malaysia.pdf > accessed 13 August 2021
  2.  International Labour Office, ‘World Employment and Social Outlook: Trends for women 2017’ (ILO, Geneva, 2017)<https://www.ilo.org/wcmsp5/groups/public/—dgreports/—inst/documents/publication/wcms_557245.pdf > accessed 15 August 2021
  3.  Teh Athira Yusof, ‘Gender Discrimination: WAO calls for review of Employment Act’ News Straits Time (Kuala Lumpur, 27 October 2020) < https://www.nst.com.my/news/nation/2020/10/635829/gender-discrimination-wao-calls-review-employment-act > accessed 15 August 2021 
  4. Human Rights Commission of Malaysia, ‘An Independent Report to the Commitment on the Convention on the Elimination of All Forms of Discrimination Against Woman (CEDAW)’ (2017)
  5. Nazruzila Razniza Binti Mohd Nadzri, ‘Malaysian Employment Laws: Tracking the Recent Updates’(2012) 1 SEAJBEL < https://seajbel.com/wp-content/uploads/2014/07/Malaysian-Employment-Laws-Tracking-The-Recent-Updates-Nazruzila-Razniza-Binti-Mohd-Nadzri.pdf > accessed 13 August 2021 
  6. The World Bank Group, ‘Women, Business, and the Law 2021’ (World Bank, Washington DC, 2021)<https://openknowledge.worldbank.org/bitstream/handle/10986/35094/9781464816529.pdf > accessed 18 August 2021
  7. Jashpal Kaur Bhatt, ‘Pregnancy and Maternity Entitlements under the Employment Act 1955 – Are Women Workers in Malaysia being short-changed?’ [2015] 5 MLJ Ixxxiii
  8. Constitution (Amendment) (No.2) Act 2001 
  9. [2005] 3 MLJ 681
  1. World Bank Group, ‘Breaking Barriers: Towards Better Economic Opportunities for Women in Malaysia’ (World Bank, The Malaysia Development Experience Series, 2019) <https://documents1.worldbank.org/curated/en/734461569247873555/pdf/Breaking-Barriers-Toward-Better-Economic-Opportunities-for-Women-in-Malaysia.pdf > accessed 13 August 2021
  2.  International Labour Office, ‘World Employment and Social Outlook: Trends for women 2017’ (ILO, Geneva, 2017)<https://www.ilo.org/wcmsp5/groups/public/—dgreports/—inst/documents/publication/wcms_557245.pdf > accessed 15 August 2021
  3.  Teh Athira Yusof, ‘Gender Discrimination: WAO calls for review of Employment Act’ News Straits Time (Kuala Lumpur, 27 October 2020) < https://www.nst.com.my/news/nation/2020/10/635829/gender-discrimination-wao-calls-review-employment-act > accessed 15 August 2021 
  4. Human Rights Commission of Malaysia, ‘An Independent Report to the Commitment on the Convention on the Elimination of All Forms of Discrimination Against Woman (CEDAW)’ (2017)
  5. Nazruzila Razniza Binti Mohd Nadzri, ‘Malaysian Employment Laws: Tracking the Recent Updates’(2012) 1 SEAJBEL < https://seajbel.com/wp-content/uploads/2014/07/Malaysian-Employment-Laws-Tracking-The-Recent-Updates-Nazruzila-Razniza-Binti-Mohd-Nadzri.pdf > accessed 13 August 2021 
  6. The World Bank Group, ‘Women, Business, and the Law 2021’ (World Bank, Washington DC, 2021)<https://openknowledge.worldbank.org/bitstream/handle/10986/35094/9781464816529.pdf > accessed 18 August 2021
  7. Jashpal Kaur Bhatt, ‘Pregnancy and Maternity Entitlements under the Employment Act 1955 – Are Women Workers in Malaysia being short-changed?’ [2015] 5 MLJ Ixxxiii
  8. Constitution (Amendment) (No.2) Act 2001 
  9. [2005] 3 MLJ 681
  10. [2014] 5 MLJ 318
  11. Norfadilla bt Ahmad Saikan v Chayed bin Basirun & Lain-lain [2012] 1 MLJ 832
  12. Asian-Pacific Resources & Research Centre for Women & Federation of Reproductive Health Association Malaysia, ‘Monitoring Report: Gender Equality in Malaysia’ (2020) < https://arrow.org.my/wp-content/uploads/2021/01/Gender-Equality-In-Malaysia-.pdf > accessed 14 August 2021
  13. Nazihah Muhamad Noor, ‘Maternity Leave in Malaysia: The March to 90 Days’ (Khazanah Research Institute, 2019<http://www.krinstitute.org/assets/contentMS/img/template/editor/Views_Maternity%20Leave%20in%20Malaysia%20-%20The%20March%20to%2090%20Days.pdf> accessed 15 Aug 2021
  14. Dashveenjit Kaur, ‘Human Resources Ministry proposes 7 amendments to Employment Act 1955’ The Malaysian Reserve (23 July 2019) < https://themalaysianreserve.com/2019/07/23/human-resources-ministry-proposes-7-amendments-to-employment-act-1955/> accessed 18 August 2021
  15. Dina Murad, ’98-day maternity leave proposed’ The Star Online (Petaling Jaya, 6 October 2019) <https://www.mef.org.my/news/mefitn_article.aspx?ID=774&article=Star191006a> accessed 13 August 2021